Murray v Police

[2014] NZHC 1334

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-42 [2014] NZHC 1334

BETWEEN

SEAN ALEXANDER MURRAY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	12 June 2014
Appearances:	G J Murphy for Appellant D J Orchard for Respondent
Judgment:	13 June 2014

JUDGMENT OF MANDER J

Introduction

[1]      The appellant appeals the length of his disqualification imposed upon his conviction for an excess breath alcohol offence committed in March this year.

Background

[2]      The appellant was charged pursuant to s 57(1) of the Land Transport Act

1988 (the Act) with being a person under 20 years who drove a motor vehicle while the proportion of alcohol in his breath exceeded 150 mcg of alcohol per litre of breath.  At the time of the offence the appellant was aged 19 years and 11 months. The evidential breath test returned a positive result of 383 mcg of alcohol per litre of

breath.

SEAN ALEXANDER MURRAY v NEW ZEALAND POLICE [2014] NZHC 1334 [13 June 2014]

Sentence

[3]      The appellant entered a guilty plea at the first call of the matter before Judge O’Driscoll.  He was convicted and sentenced to a fine of $400, ordered to pay Court costs of $130 and disqualified from driving for a period of 6 months.

[4]      In sentencing the appellant, Judge O’Driscoll observed that for a driver under the age of 20 the breath alcohol limit is zero.   The sentencing Judge took into account the appellant’s age and that he had no previous convictions.

The appeal

[5]      The maximum penalty for offending under s 57(1) is 3 months imprisonment or a $2,250 fine and mandatory disqualification from driving for a minimum period of 3 months.

[6]      The appellant’s submission is that the 6 month period of disqualification was manifestly excessive for a first offender who pleaded guilty at the first available opportunity.

[7]      Section 57 of the Act relevantly provides as follows:

57Contravention  of  specified  breath  or  blood-alcohol  limit  by person younger than 20

(1)       A person younger than 20 commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds

150 micrograms of alcohol per litre of breath.

(1A)     A person younger than 20 commits an infringement offence if the person drives or attempts to drive a motor vehicle on a road while the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, contains alcohol   but   the   proportion   of   alcohol   does   not   exceed   150 micrograms of alcohol per litre of breath.

(2)       A person younger than 20 commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 30 milligrams of alcohol per 100 millilitres of blood.

(2A)     A person younger than 20 commits an infringement offence if the person drives or attempts to drive a motor vehicle on a road while the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or 73, contains alcohol but the proportion of alcohol does not exceed 30 milligrams of alcohol per 100 millilitres of blood.

(3)      If a person commits an offence against subsection (1) or subsection

(2),—

(a)      the  maximum  penalty  is  imprisonment  for  a  term  not exceeding 3 months or a fine not exceeding $2,250; and

(b)      the  court  must  order  the  person  to  be  disqualified  from holding or obtaining a driver licence for 3 months or more.

(4)       The imposition of a mandatory disqualification under this section is subject to section 81.

[8]      The provision provides a statutory regime governing persons younger than 20 who consume alcohol and drive.  There is a zero tolerance for persons younger than

20 who consume alcohol and then drive a motor vehicle.   The provision however discriminates between a person younger than 20 whose breath alcohol level exceeds

150 mcg of alcohol per litre of breath and those who fall under that level.   In the latter situation the driver commits an infringement offence and is subject to a $200 fine and 50 demerit points.1    In the former situation the young driver is liable to conviction and a penalty which includes imprisonment and a period of disqualification.

[9]      The ordinary breath alcohol limit for an offence against s 56 of the Act is 400 mcg of alcohol per litre of breath.   Breach of that limit attracts a period of disqualification of not less than 6 months.

[10]     In the present case, the appellant’s reading was in the higher bracket for persons younger than 20 years and was not far away from the adult breath alcohol threshold.  It would appear that this factor influenced Judge O’Driscoll in imposing the 6 month period of imprisonment.

The appellant’s submission

[11]     In support of the appeal, Ms Murphy submitted the following: (a)     The appellant entered the earliest possible guilty plea.

(b)      There  were  no  aggravating  factors  relating  to  the  manner  of  the

appellant’s driving.

(c)       The appellant was just two weeks shy of his 20th  birthday when the offence was committed.

(d)      The appellant has no previous convictions.

(e)       The  breath  alcohol  level  was  lower  than  the  adult  limit,  albeit  if nominally so.

(f)      The sentence of 6 months disqualification is twice the minimum.

[12]     Ms  Murphy referred  to  Dayson  v Police,2   where the appellant  had  been apprehended driving while the proportion of alcohol in his breath was 396 mcg of alcohol per litre of breath.  A 6 month disqualification was imposed.  Insofar as it is relevant to the present case, Winkelmann J in her decision on the appeal stated:

… In relation to the issue of disqualification, counsel for Mr Dayson has submitted to me that 3 months disqualification is appropriate because this is nothing other than a standard first offence.  I cannot accept that submission given the associated accident and also given the substantial extent to which the legal limit was exceeded.  However, she has persuaded me that 6 months is more than is required to serve the purposes of denunciation, deterrence and protection of the public.   I reduce the level of disqualification to 5 months disqualification.

[13]     In that case an aggravating feature of the offending was that the appellant had been involved in a crash and had accepted that he had been speeding.  In the absence of such aggravating features it was submitted a 6 month disqualification was excessive and inappropriate.

Respondent’s submission

[14]     For the respondent, Ms Orchard argued that the period of disqualification was within the Judge’s discretion to impose, particularly having regard to the fact that the appellant was only 17 mcg under the adult limit.  She stressed that under s 250 of the Criminal Procedure Act 2011 the appeal Court has to be satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed before allowing an appeal.

[15]     Reference was made to Rathbun v Police,3  where a 19 year old had been caught  driving  with  a blood  alcohol  level  of  80  milligrams  of alcohol  per 100 millilitres of blood – more than two and a half times the legal limit for a person of his age.   In the District Court a period of disqualification of 6 months had been imposed.  On the appeal against that period of disqualification, Potter J accepted a submission  that  in  the  case  of  a  first  offender,  even  where  the  limit  has  been exceeded considerably, a period of disqualification twice the minimum would be unusual.   Referring to the case of Dayson the learned Judge considered that the period of disqualification of 6 months was likewise not required for the purposes of denunciation,  deterrence  and  protection  of  the  public  in  the  absence  of  any associated accident or errant driving.   Some recognition however was required in respect of the extent to which the appellant had breached the legal limit for his age. This resulted in the period of 6 months disqualification being substituted for one of 4 months.

Analysis

[16]     The Crown submitted that both cases, Rathbun and Dayson, were decided prior to the imposition of a zero alcohol limit for drivers under the age of 20, and that when viewed in that light they should not be considered as authority for the proposition that the sentencing Judge in this case had erred in his approach.  Against that and in accordance with the approach taken in both those cases, Ms Murphy did not contend that there should not have been some uplift in the period of disqualification to mark the appellant’s relatively high level of breath alcohol but

that the 6 month period was too long.

3      Rathbun v Police HC Auckland CRI-2009-404-201, 31 August 2009.

[17]     Ms Murphy also sought to argue that where a 6 month disqualification was imposed the effect of such a lengthy disqualification was to cancel the 50 demerit points that the appellant’s offending would otherwise attract.  In her submission the personal deterrence from the risk of incurring further demerit points and the loss of licence was a more effective and appropriate sanction in the circumstances.  There is some attraction in Ms Murphy’s submission, however under s 91(3) of the Act it is not clear that the demerit points which are referred  to in the subsection  would include those imposed for the same offence for which the 6 months disqualification

was imposed.4

[18]     It is unnecessary for me to resolve that issue as, notwithstanding the possible merit of the submission, I have concluded that the imposition of a 6 month period of disqualification is excessive in the circumstances of a driver under 20 who in the absence of any particular aggravating features relating to the driving pleads guilty at the first opportunity and has no previous convictions.  The appellant effectively has been the subject of the same period of disqualification as a driver who has breached the standard breath alcohol limit of 400 mcg of alcohol per litre of breath.  He did not however commit that offence.

[19]     The sentence of 6  months  disqualification  is  quashed and  in  its  place  a

4 month disqualification is imposed. The fine and Courts costs remain unaltered.

Solicitors:

Clark Boyce, Christchurch

Raymond Donnelly & Co, Christchurch

4      Land Transport Act 1988, ss 90 and 91.